Citation Nr: 0313613
Decision Date: 06/23/03 Archive Date: 06/30/03
DOCKET NO. 93-27 503 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Evaluation (original) of Osgood-Schlatter's disease of
the right knee, currently rated as 10 percent disabling.
2. Evaluation (original) of Osgood-Schlatter's disease of
the left knee, currently rated as 10 percent disabling.
3. Evaluation (original) of degenerative joint disease of
the dorsal spine, currently rated as non-compensably (0
percent) disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. R. Olson, Counsel
INTRODUCTION
The veteran's active military service extended from September
1986 to June 1992.
The veteran currently resides within the jurisdiction of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas.
In December 1993, a hearing was held beforethe undersigned
Veterans Law Judge issuing this Remand who was designated by
the Chairman of the Board of Veterans' Appeals (Board) to
conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West
2002).
REMAND
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §
5102, 5103, 5103A, 5107 (West 2002)) became law. This law
redefined the obligations of VA with respect to the duty to
assist and included an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits.
In February 2003, the Board wrote to the veteran notifying
him of the evidence necessary to substantiate his claims for
higher evaluations.
After the Board wrote to the veteran, the United States Court
of Appeals for the Federal Circuit (Federal Circuit)
invalidated provisions of 38 C.F.R. § 19.9(a)(2), and
(a)(2)(ii). See Disabled American Veterans v. Secretary of
Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May
1, 2003). These provisions allowed the Board to develop
evidence and take action to correct a missing or defective
VCAA duty to notify letter as required by 38 U.S.C. § 5103(a)
and 38 C.F.R. § 3.159(b)(1). As a result of the Federal
Circuit decision, the Board no longer has authority to cure
VCAA deficiencies. The result is that the RO must provide
the notice required by VCAA. The RO must review evidence and
notify the veteran of the evidence needed to support his
claim, what evidence VA will develop and what evidence the
veteran must submit.
While the Board regrets the further delay, because of the
Federal Circuit decision in Disabled American Veterans v.
Secretary of Veterans Affairs, supra, a remand in this case
is required. Accordingly, this case is REMANDED to the RO
for the following:
1. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 2002) are
fully complied with and satisfied. See
also 38 C.F.R. § 3.159 (2002).
Particularly, the RO must notify the
veteran of the applicable provisions of
VCAA, including what evidence is needed to
support the claim, what evidence VA will
develop, and what evidence the veteran
must furnish. The RO should notify the
veteran that he has a year to submit
additional evidence and that he can waive
the year and ask the RO and Board to
proceed. 38 C.F.R. § 3.158 (2002).
2. Thereafter, the RO should readjudicate
this claim in light of the evidence added
to the record since the last supplemental
statement of the case (SSOC). If any
benefit sought on appeal remains denied,
the appellant and his representative
should be provided a SSOC. An appropriate
period of time should be allowed for
response.
Subsequently, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
_________________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).